* Pursuant to 5 TH C IR

. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

April 20, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-41180 c/w

No. 03-41195

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FERNANDO URIBE-JIMENEZ,

Defendant-Appellant.

-------------------- Appeals from the United States District Court

for the Southern District of Texas

USDC No. B-03-CR-299-1

--------------------

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM: *

Fernando Uribe-Jimenez (Uribe) appeals his guilty-plea

convictions of transporting an illegal alien and illegal reentry

into the United States after having been convicted of an aggravated

felony and deported. The pleas were taken separately. There was

a written plea agreement in the alien-transporting case; there was

no plea agreement in the illegal reentry case. Because the alien

transportation offense is a “specific offense cha racteristic” of2

illegal reentry under U.S.S.G. § 2L1.2(b)(1)(A), the offenses were

grouped pursuant to U.S.S.G. § 3D1.2(c), and the sentence was based

on the guidelines for illegal-reentry.

Uribe contends that the Government breached the written plea

agreement by not orally recommending a downward departure for

Uribe’s early cooperation. Absent any objection in the district

court, we review for plain e rror only. S ee United States v.

Reeves

, 255 F.3d 208, 210 (5th Cir. 2001). The inclusion of the

Government’s recommendation in the Presentence Report fulfilled the

Government’s plea-agreement obligation to recommend a downward

departure for that offense. See United States v. Cates , 952 F.2d

149, 153 (5th Cir. 1992). Moreover, a downward departure as

promised in the alien-transporting ca se would not have affected

Uribe’s substantial rights because it would have had no effect on

the overall sentence, which was base d on the illegal reentry

offense. Uribe shows no plain error.

For the first time on appeal, Uribe argues that 8 U.S.C.

§ 1326(b) is unconstitutional because it does not require the fact

of a prior felony or aggravated felony conviction to be charged in

the indictment and proved beyond a reasonable doubt. He thus

contends that his sentence is invalid and argues that it should not

ex ceed the two-year maximum term of imprisonment prescribed in 8

U.S.C. § 1326(a).

Uribe acknowledges that his argument is foreclosed by

Almendarez-Torre s v. United States , 523 U.S. 224 (1998) , but3

asserts that the decision has been cast into doubt by Apprendi v.

New Jersey

, 530 U.S. 466, 490 (2000). He seeks to preserve his

argument for further review. A ppr endi did not overrule

Almendarez-Torres

. S ee Apprendi

, 530 U.S. at 489-90; United States

v. Dabeit

, 231 F.3d 979, 984 (5th Cir. 2000). This court must

follow Almendarez-Torres “unless and until the Supreme Court itself

determines to overrule it.” D abeit

, 231 F.3d at 984 (internal

quotation marks and citation omitted).

AFFIRMED.